45 Neb. 176 | Neb. | 1895
The plaintiff commenced this action to recover of the defendants the sum of $6,052.53 and interest alleged to have accrued thereon. The petition states in substance: “The said plaintiff complains of said defendants, and for cause states that at the date of the written instruments or obligatures hereinafter copied and set forth, and for several years just immediately preceding said dates and for some time thereafter, as hereinafter stated, the said defendants were associated together and doing, operating, and conducting a general banking business in the city of Humboldt, in said Richardson county, state of Nebraska, under the name and style of the Farmers & Merchants Bank of Humboldt, Nebraska, with said defendant Robert C. Lambertson, as the cashier of said bank, authorized for and in behalf of said defendants to receive deposits of money into said bank
What is denominated the first cause of action is an allegation of a deposit by plaintiff in the bank of $6,445, December 7, 1888, and the issuance to her by the cashier thereof of a certificate evidencing such deposit, it being, as is shown by the copy in the petition, what is generally known as a “time certificate,” and payable in one year after date. There are three credits or payments pleaded, which are stated to have been received since the assignment of the bank. The second cause of action, is predicated upon the purchase of a draft by plaintiff of the defendants through the cashier of the bank, in the sum of $200, drawn on the National Bank of Kansas City, and which, it is álleged was duly presented and not paid for want of funds belonging to the bank issuing it to meet it. Certain payments are stated to have been received and credited upon the draft, derived from the assets of the Humboldt bank since the assignment. It is further pleaded :
“4. The said defendants claim that their said bank was a duly incorporated bank under the laws of the state of Nebraska, under the name and style of the Farmers & Merchants Bank of Humboldt, Nebraska; that it was so organized and incorporated on or about the 1st day of July, A. D. 1879. The said corporation or bank of said defendants operated and conducted said bank as above from about the 10th day of July, 1879, to about the 29th day of June 1889, when said corporation made an assignment, as an insolvent institution or corporation under the general assignment laws of' the state of Nebraska, to the sheriff of said county.
“ 5. The said plaintiff alleges that from the organization of said banking corporation of said defendants, on or about July 10, A. D. 1879, to the said assignment, on or about June 29, A. D. 1889, the said defendants were stockholders and members of said corporation, and are still*183 ■so related and connected with the affairs of said assigned bank.
“ 6. The said plaintiff further alleges that at the time when said plaintiff deposited her said moneys in said bank, snd at the times and dates when said indebtedness was contracted and said certificate of deposit or promissory note was delivered to said plaintiff as above stated, and when said draft or bill of exchange was made and delivered to this plaintiff as above stated, and for a long time before and ever since then, the said corporation or banking institution of defendants was insolvent.”
Here follows a general allegation of the failure of defendants and their banking corporation “to comply with the laws of Nebraska regulating such corporations, and that by reason of such failure the defendants were rendered individually liable for debts contracted by the corporation, and also allegations of failures in particular, viz.: To publish notice of the organization of the banking corporation; to post up a copy of the by-laws of the corporation in a conspicuous position at the place ot business for the inspection of the public; that for more than a year immediately preceding the transaction, as the result of which the liability from defendants to plaintiffs arose,” the defendants and their banking corporation did not give an annual notice of all the existing debts of the corporation by publication of a statement in a newspaper, and by reason of the non-compliance in these instances specified the defendants became personally and individually liable for the payment of any debts contracted by the corporation, the bank. Motions to require the plaintiff to make her petition more definite and certain were filed and overruled, demurrers were then interposed which were also overruled. One defendant, Lambertson, elected to stand upon his demurrer and plead no further. The defendant Stuart filed his separate answer, which contained a general denial of the allegations of the petition and a statement that he never owned more than
The aim of the plaintiff in this action, allowing the allegations contained in her pleadings to be its exponents, seems have been threefold in reference to the liability which it was sought to establish against the defendants: First, a liability as unincorporated persons, or partners; second, a liability under a provision of the statute for failure to perform certain requisitions of the law in relation to the formation of corporations, not specifically set forth in the section of the statute, but referred to in general terms; third, the accountability provided by statute, arising from the non-performance of a duty specifically stated and required by the section fixing the liability for such failure.
“ In this state the filing of articles of incorporation with the county clerk is a condition precedent to the existence of any corporate franchise. The law and the articles so filed, taken together, are considered in the nature of a grant from the state, and constitute the charter of the company,” (Abbott v. Omaha Smelting Co., 4 Neb., 416,) and in the body of the opinion in that case is the following : “I think, in order to establish such a corporation, it is neces
In Society Perun v. Cleveland, 43 O. St., 481, in the opinion written by Owen, J., it is said: “The theory that a de facto corporation has no real existence, that it is a mere phantom, to be invoked only by that rule of estoppel which forbids a party who has dealt with a pretended corporation to deny its corporate existence, has no foundation, either in reason or authority. A de facto corporation is a reality. It has an actual and substantial legal existence. It is, as the term implies, a corporation. * * * Where it * * * has been reputed and dealt with as a duly incorporated body, and valuable rights and interests Have been acquired and transferred by it, no substantial reason is suggested why its corporate existence, in a suit involving such transactions, should be subject to attack by any other party than the state, and then only when it is called upon in a direct proceeding for that purpose, to show by what authority it assumes to be a corporation.”
In the case of Gartside Coal Co. v. Maxwell, 22 Fed. Rep., 197, it was held: “Where persons, supposing in good faith that tbey are incorporated and are stockholders in a valid corporation, do business as a corporation for a series of years, without the corporate existence being challenged by the state, parties who deal with the company as a corporation cannot hold the stockholders personally liable in case they afterwards discover that the company was not validly incorporated in consequence of some defect or irregularity in the proceedings of the supposed incorporators.”
Having reached this conclusion, it is clear that the plaintiff could not recover in this case against the defendants on the grounds that they were an unincorporated association, or partnership, and we shall now pass to the second branch of the suit, i. e., that the defendants were personally liable because of the failure to comply with certain requirements with respect to the formation of the company. The section of the statutes which it is claimed established the liability is as follows: “If any corporation fail to comply substantially with the provisions of this subdivision, in relation to giving notice and other requisitions of organization, the property of all the stockholders shall be liable for the corporate debts.” (Sec. 139, ch. 16, Compiled Statutes, 1887.) In the por
The remedy claimed in what we have designated the third branch of the case was afforded by the provision of
In order to more fully comprehend the matter under discussion it is proper here to notice another portion of our statutes. Section 2 of chapter 88, Compiled Statutes, 1893,. which was passed and took effect during 1873, is as follows : “Whenever a statute shall be repealed, such repeal shall in no manner affect pending actions founded thereon,, nor causes of actions not in suit that accrued prior to any such repeal, except as may be provided in such repealing statute.” “The legislature has power to pass a general saving statute, which shall have the force and effect to save rights and remedies, except where the repealing statute itself shows that it was not the intention of the legislature that such rights and remedies should be saved. Though one legislature cannot bind future legislatures and each can make its laws prevail against any that exist, and its inten
In the judicial district in which the trial of this case was heard there were two judges, one of them (Judge Bush) heard the arguments on demurrers to the petition and overruled them. The trial was conducted by Judge Babcock, the other judge of the district. At the commencement of the introduction of the testimony the defendants objected to the reception of any evidence, on the ground that the petition did not state a cause of action. This was overruled,
It appears that after the close of the testimony and some arguments of counsel the trial judge announced that it was his intention to instruct the jury to the effect as hereinbefore quoted. Counsel for plaintiff then made a motion by which he asked to be allowed to amend the petition and state therein- specifically the insolvency of the bank and its
Affirmed.